28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Play areas. (Section-by-Section Analysis)

Sections 206.2.17, 206.7.8, and 240.1 of the 2004 ADAAG provide a detailed set of requirements for newly constructed and altered play areas.  Section 240.2.1.1 of the 2004 ADAAG requires that at least one ground level play component of each type provided (e.g., for different experiences such as rocking, swinging, climbing, spinning, and sliding) must be accessible and connected to an accessible route.  In addition, if elevated play components are provided, entities must make at least fifty percent (50%) of the elevated play components accessible and connect them to an accessible route, and may have to make an additional number of ground level play components (representing different types) accessible as well.  There are a number of exceptions to the technical specifications for accessible routes, and there are special rules (incorporated by reference from nationally recognized standards for accessibility and safety in play areas) for accessible ground surfaces.  Accessible ground surfaces must be inspected and maintained regularly and frequently to ensure continued compliance.

The Department is concerned about the potential impact of these supplemental requirements on existing play areas that are not otherwise being altered.  The program accessibility requirement does not require public entities to make structural modifications to existing facilities except where such modifications may be necessary to make the program or service, when considered as a whole, accessible to individuals with disabilities.  Although play areas may be more likely than other types of facilities to require structural modifications, this does not mean that every existing playground operated by a city or county must be made accessible. Compliance with the program accessibility requirement turns on the accessibility of the program--i.e., the program of providing and maintaining public playgrounds--rather than the accessibility of each particular facility used to provide that program.  Where a public entity provides and maintains multiple play areas as part of its program of providing public playgrounds, for purposes of the program accessibility requirement, only a reasonable number but at least one of such play areas would be required to undertake structural modifications to provide access for individuals with disabilities.  The same reasoning would apply where an existing site (e.g., a state park) provides multiple play areas designed for the same age group.

The Department notes that the requirement to provide a reasonable number of accessible play areas is consistent with the longstanding program accessibility rules, which provide that it is not necessary for every facility to be accessible, provided that the program, when viewed in its entirety, is readily accessible to individuals with disabilities.  In situations where a public entity provides the services of one program at multiple sites (e.g., a town with ten parks), the public entity would focus on whether the number and location of the accessible parks offer comparable convenience to persons with disabilities and whether the range of programs and services offered at the accessible parks are equivalent to the range offered at the inaccessible parks.  At a minimum, a public entity must provide at least one accessible facility unless the public entity can demonstrate that providing the accessible facility would result in a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens.  However, determining how many more than one would be "reasonable" requires a careful analysis of factors in order to determine how many accessible facilities are necessary to ensure that the covered program is accessible.  Factors to be considered include, but are not limited to, the size of the public entity,  geographical distance between sites, travel times to the sites, the number of sites, and availability of public transportation to the sites.

The Department is proposing several specific provisions and posing additional questions in an effort to both mitigate and gather information about the potential burden of the supplemental requirements on existing public facilities.

Question 24:  Is a  "reasonable number, but at least one" a workable standard for determining the appropriate number of existing play areas that a public entity must make accessible for its program to be accessible?  Should the Department provide a more specific scoping standard?  Please suggest a more specific standard if appropriate.  In the alternative, should the Department provide a list of factors that a public entity could use to determine how many of its existing play areas to make accessible, e.g., number of play areas, travel times, or geographic distances between play areas, and the size of the public entity?
State and local governments may have already adopted accessibility standards or codes similar to the 2004 ADAAG requirements for play and recreation areas, but which might have some differences from the Access Board's guidelines.

State and local governments may have already adopted accessibility standards or codes similar to the 2004 ADAAG requirements for play and recreation areas, but which might have some differences from the Access Board's guidelines. [sic]

Question 25:  The Department would welcome comment on whether there are state and local standards specifically regarding play and recreation area accessibility.  To the extent that there are such standards, we would welcome comment on whether facilities currently governed by, and in compliance with, such state and local standards or codes should be subject to a safe harbor from compliance with applicable requirements in the 2004 ADAAG.  We would also welcome comment on whether it would be appropriate for the Access Board to consider implementation of guidelines that would permit such a safe harbor with respect to play and recreation areas undertaking alterations.

Question 26:  The Department requests public comment with respect to the application of these requirements to existing play areas.  What is the "tipping point" at which the costs of compliance with the new requirements for existing play areas would be so burdensome that the entity would simply shut down the playground?

The Department is proposing two specific provisions to reduce the impact on existing facilities that undertake structural modifications pursuant to the program accessibility requirement. First, the Department proposes to add § 35.150(b)(5)(i) to provide that existing play areas that are less than 1,000 square feet in size and are not otherwise being altered need not comply with the scoping and technical requirements for play areas in section 240 of the 2004 ADAAG.  The Department selected this size based on the provision in section 1008.2.4.1 of the 2004 ADAAG, Exception 1, permitting play areas less than 1,000 square feet in size to provide accessible routes with a reduced clear width (44 inches instead of 60 inches).  In its 2000 regulatory assessment for the play area guidelines, the Access Board assumed that such "small" play areas represented only about twenty percent (20%) of the play areas located in public schools, and none of the play areas located in city and state parks (which the Board assumed were typically larger than 1,000 square feet).  If these assumptions are correct, the proposed exemption would have relatively little impact on most existing play areas operated by public entities, while still mitigating the burden on those smaller public entities to which it did apply.

Question 27:  The Department would like to hear from public entities and individuals with disabilities about the potential effect of this approach.  Should existing play areas less than 1,000 square feet be exempt from the requirements applicable to play areas?

Secondly, the Department proposes to add § 35.150(b)(4)(i) to provide that existing play areas that are not being altered will be permitted to meet a reduced scoping requirement with respect to their elevated play components.  Elevated play components, which are found on most playgrounds, are the individual components that are linked together to form large-scale composite playground equipment (e.g., the monkey bars attached to the suspension bridge attached to the tube slide, etc.).  The proposed standards provide that a play area that includes both ground level and elevated play components must ensure that a specified number of the ground level play components and at least fifty percent (50%) of the elevated play components are accessible.

Many commenters advised the Department that making elevated play components accessible in existing play areas that are not otherwise being altered would impose an undue burden on most facilities.  Given the nature of the element at issue, retrofitting existing elevated play components in play areas to meet the scoping and technical specifications in the alteration standard would be difficult and costly, and in some instances, infeasible.  In response to expressed concerns, the Department proposes to reduce the scoping for existing play areas that are not being altered by permitting entities to substitute ground level play components for elevated play components.  Entities that provide elevated play components that do not comply with section 240.2.2 of the 2004 ADAAG would be deemed in compliance for purposes of the program accessibility requirement as long as the number of accessible ground level play components is equal to the sum of (a) the number of ground level play components required to comply with section 240.2.1 of the 2004 ADAAG (as provided by Table 240.2.1.2, but at least one of each type) and (b) the number of elevated play components required to comply with 2004 ADAAG section 240.2.2 (namely, fifty percent (50%) of all elevated play components).  In existing play areas that provide a limited number of ground level play components, qualifying for this exception may require providing additional ground level play components.

While this provision may result in less accessibility than the application of the alteration standard, public entities will likely be more willing to voluntarily undertake structural modifications in play areas if they anticipate that compliance will be straightforward and relatively inexpensive.  In addition, for existing play areas with limited resources, it will often be more efficient to devote resources to making the ground surface of the play area accessible, which is necessary to provide an accessible route to any play components.  Reduced scoping for elevated play components could also minimize the risk that covered entities will delay compliance, remove elevated play components, or simply close the play area.  It also provides a bright-line rule for which compliance can be easily evaluated.       

Question 28:  The Department would like to hear from public entities and individuals with disabilities about the potential effect of this approach.  Should existing play areas be permitted to substitute additional ground level play components for the elevated play components it would otherwise have been required to make accessible?  Are there other select requirements applicable to play areas in the 2004 ADAAG for which the Department should consider exemptions or reduced scoping?

Question 29:  The Department would welcome comment on whether it would be appropriate for the Access Board to consider implementation of guidelines for play and recreational facilities undertaking alterations that would permit reduced scoping of requirements or substitution of ground level play components in lieu of elevated play components, as the Department is proposing with respect to barrier removal obligations for certain play or recreational facilities.